California lawmakers send new PFAS restrictions to Governor’s desk
On September 12 and 13, 2023, the California legislature approved bills to phase out per- and polyfluoroalkyl substances (PFAS) in an array of cleaning, household, automotive, and industrial products, as well as artificial turf. Governor Gavin Newsom is expected to sign both AB 727 and AB 1423 into law.
Both bills seek to restrict PFAS in covered products by prohibiting PFAS, broadly defined, that has been intentionally added to a covered product for “functional or technical effect,” and, separately, with a ban on the sale of covered products containing total organic fluorine (TOF) above specified limits.
Importantly, as with other recent California legislation targeting PFAS in cookware, food packaging, and children’s products, these bills adopt low TOF limits without clarity as to the appropriate analytical methodology, a topic subject to considerable debate between plaintiffs' lawyers and companies.
Accordingly, the bills may encourage more litigation based on PFAS testing that lacks appropriate validation, and litigation targeting products with arguable trace organic fluorine levels but none of the “forever chemicals” deemed to be hazardous.
AB 727 (cleaning products, air fresheners, flooring products)
AB 727 would phase out PFAS in a variety of consumer and industrial products, including household cleaning products; floor finishes, sealers, polishes, and maintenance products; air fresheners; and interior and exterior car care products. Covered products include the following:
- Air fresheners and other “[a]ir care product[s],” defined as “chemically formulated consumer product[s] labeled to indicate that the purpose of the product is to enhance or condition the indoor environment by eliminating unpleasant odors or freshening the air.”
- Auto detailing products, including products for washing, waxing, polishing, cleaning, disinfecting, buffing, or treating the exterior or interior surfaces of motor vehicles.
- Industrial or institutional floor surface treatment products used to seal and/or finish floors.
- Any “[g]eneral cleaning product” including soaps, detergents, and other consumer products intended to clean, disinfect, sanitize, or care for housewares and home surfaces.
- Consumer products including polishes and waxes intended for floor and furniture care, including cleaning or conditioning metal, leather, or other surfaces. These products do not include treatments containing PFAS for use on converted textiles or leathers.
Starting January 1, 2026, the bill would prohibit any person or entity from manufacturing, selling, distributing, offering for sale, or holding covered products containing intentionally added PFAS or TOF quantities at decreasing thresholds:
- 50 ppm beginning January 1, 2026
- 25 ppm beginning January 1, 2027
- 10 ppm beginning January 1, 2028
For floor finishes and sealers, the first compliance date is January 1, 2028, when the products must not contain intentionally added PFAS or 10 ppm TOF.
Violations may result in civil penalties up to $10,000 per day for each violation.
AB 1423 (artificial turf)
AB 1423 would prohibit the manufacture, sale, or distribution of artificial grass containing intentionally added PFAS or concentrations at or above 20 ppm TOF beginning in 2026, with civil penalties up to $5,000 for the first and $10,000 for each subsequent violation.
Manufacturers would be required to use the least toxic alternative to replace PFAS in these products. In addition, most California cities, counties, and schools would be prohibited from purchasing or installing artificial turf or other synthetic grass products that contain intentionally added PFAS or 20 ppm TOF.
Both bills pose significant compliance challenges
The bills adopt a broad definition of PFAS and similarly define “intentionally added” PFAS as PFAS that a manufacturer has intentionally added to a product or ingredient and that has a “functional or technical effect” in it. Both bills would also restrict covered products, regardless of intentionally added PFAS, that exceed prescribed TOF ppm concentrations that are notably more stringent than prior restrictions for other product categories.
Compliance efforts would need to consider, in many instances, known PFAS incorporation and determination of TOF content – significant, potentially costly undertakings for regulated stakeholders.
DLA Piper’s interdisciplinary PFAS Task Force closely tracks legislative and regulatory trends in the US and internationally. We assist clients in diverse industries with navigating the complex, rapidly evolving regulatory landscape and designing efficient and effective compliance programs. Please contact any of the authors with questions about California’s pending bills or other PFAS matters.
